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Friday, May 20, 2011

Online Copyright: Norms Or the Law, One Of Them Needs To Give In

On the road to respect for copyright there is not much traffic
Photo Danny Friedmann

Professor Ken Shao, director of China Law Programme of the Murdoch University in Perth, Australia, has an interesting article in the Global Times in which he persuasively explains that a balance between copyright protection and access to knowledge should be struck. Professor Shao points to the "expectation" issue and that internet users have to be made aware that their expectation to get everything online for free is not justified. There seems indeed a disconnect between the norms of internet users and the law. Then he questions whether Shanda Interactive Entertainment Ltd, who successfully sued Baidu before a Shanghai court, did so for the wrong reasons. The Shanghai People's Court decided that since Baidu had knowledge of the copyright infringements against Shanda, the ISP safe harbor provision did not apply.

Professor Shao's argument that copyright might overprotect and stifle creativity is valid as such, but does not apply to the decision of Shanda whether or not to sue Baidu. The reason Shanda sued Baidu because they wanted to stop the copyright infringements and be compensated for the damages inflicted upon itself. Nothing frivolous here. Commercial companies should use the law that is available to their best interests. That is their obligation they have towards their employees and stockholders. And the Shanghai court needs to apply the law regardless of who is the plaintiff and defendant, and not in a teleological way (towards a certain goal, in this case access of knowledge by Baidu users). In a moral sense professor Shao might be right if Baidu would not unfairly benefit and if the law was applied consistently (but then the law could be changed) to copyright holders, but his lofty expectations that commercial companies follow many moral principles might not be based in reality.

Although I do not completely agree with Professor Shao, I think his article is a great kick-off for further discussion on the issues copyright morality, a balanced copyright and rising awareness for the internet users about the topic. Read it here.